THE LAW OF ARMED CONFLICT – CONSTRAINTS ON THE CONTEMPORARY USE OF MILITARY FORCE

Vol. 16 No. 6 (June, 2006) pp.454-456

THE LAW OF ARMED CONFLICT – CONSTRAINTS ON THE CONTEMPORARY USE OF MILITARY FORCE, by Howard M. Hensel (ed). Ashgate Publishing, 2005. 280pp. Hardback. $89.95/£50.00. ISBN: 0754645436.

Reviewed by David Wallace, Department of Law, United States Military Academy, West Point, New York. Email: David.Wallace [at] usma.edu.

Howard Hensel’s book, THE LAW OF ARMED CONFLICT – CONSTRAINTS ON COMTEMPARY USE OF MILITARY FORCE, is a welcome addition to the body of literature on the Law of Armed Conflict, also known as International Humanitarian Law. Hensel’s book is a collection of scholarly articles addressing a wide range of contemporary issues regarding the application of customary international and treaty law related to the use of armed force in the 21st century. All of the articles in the volume are thoroughly researched, and highly readable. The articles are preceded by an insightful introduction in which Hensel not only briefly summarizes the contributions of the authors contained in the book, but offers his own valuable insights into the development of the law in this area.

In Chapter 1, Gregory Raymond considers the overarching principle of military necessity in the Law of Armed Conflict. More specifically, he examines the formation and decay of legal norms that justify acts of violence through appeals to military necessity. Raymond first defines and explains the core concept of “military necessity,” traces the international legal norms pertaining to its use, and follows with an analysis of the impact that the current administration’s national security strategy in the global war on terrorism will have on those norms. Raymond thoughtfully acknowledges that the use of terrorism as an existential security threat may reverse the historical trend toward a more restrictive interpretation of military necessity as a defense. Although relatively brief, Raymond masterfully highlights key issues of military necessity in the current national security environment.

In Chapter 2, Catherine Lotrionte considers the issue of targeting regime leaders during armed conflicts. Lotrionte evenhandedly discusses the propriety of killing regime leaders as a possible option during hostilities. She begins her analysis with an interesting discussion of the history and legality of targeting regime leaders. What the reader will like most about her article is her clear delineation of the arguments for and against targeting regime leaders. For example, she argues that the advantages of such killings are as follows: (1) assassinations may preclude greater atrocities; (2) may produce fewer military causalities than a full-scale war; (3) may prevent fewer victims from becoming collateral damage to armed conflict; (4) may effectively disrupt the brutal activities of the leader and his regime more than conventional conflict; (5) may leave no prisoners to become causes for reprisal or blackmail scenarios; and (6) may disrupt command and control which could prevent the use [*455] of weapons of mass destruction. Likewise, Lotrionte outlines several counterpoints, including the contention that assassination is morally questionable, could result in the loss of domestic and international legitimacy, may result in retaliatory attempts, could lead to international or regional instability, and might be very difficult to accomplish. Finally, Lotrionte thoughtfully provides policy makers with specific criteria to consider when making the decision to target and kill an enemy regime leader. Lotrionte’s work adds a framework and clarity to a timely and important debate.

In one of the most comprehensive treatments that I have ever read on the topic, Howard Hensel addresses the topic of the protection of cultural objects during hostilities in Chapter 3. Hensel expertly analyzes and evaluates the international community’s efforts to protect cultural property during an armed conflict. More specifically, he puts the issue of cultural property protection within the larger context of questions relating to the degree to which law of armed conflict standards are universally applicable, or should, in Hensel’s words, be dependent upon such situational considerations as the nature of the conflict and the relationship between the belligerents. The chapter considers, in depth, the various efforts by the international community to protect cultural property in a conflict. Fittingly, Hensel addresses the current customary and conventional law for protection of cultural property and its likely potential for success for future conflicts.

In Chapter 4, Mika Nishimura Hayashi considers alternative views concerning the protection of civilians during an armed conflict, including the apologetic (realistic) and utopian (idealistic) perspectives of the principle. She delineates how the failure to synchronize law and actual behavior has led a number of commentators to negate the principle of civilian protection. She specifically references the periods after the two World Wars to illustrate her point. Second, she insightfully reviews how current scholarship has come to accept a certain distance between the principle of civilian protection and actual behavior of belligerents. Hayashi specifically notes that the majority of contemporary scholars are aware of the importance of maintaining balance between normative standards and reality. Hayashi’s article is a valuable contribution to the literature on one of, if not the, most important principle of International Humanitarian Law.

Next, Francoise Hampson considers contemporary issues related to the status of prisoners-of-war and detainees during armed conflicts and examines the international legal norms regulating detentions and transfer of prisoners during the war on terror. Although various legal norms address these issues, he deliberately focuses on International Law. He also considers the status of different categories of detainees and the rights flowing from such status. Hampson does not address the controversial issues regarding the conditions under which some detainees have been held or their treatment. Hampson raises a number of very interesting issues in his piece. Of note, [*456] he discussed the applicability of the Law of Armed Conflict in relation to human rights law. He also critically explores some of the official positions taken by the US Government under International Law in relation to the individuals held in Afghanistan and Guantanamo Bay.

In Chapter 6, George Andreopoulos considers the implications of the status and accountability of armed groups under the Law of Armed Conflict and addresses the relevant legal framework governing such groups, in particular, International Human Rights Law and International Humanitarian Law. Additionally, he discusses developments associated with the war on terrorism that have contributed to restrictions of the relevant normative space and their implications. Finally, he considers the prospects for promoting accountability among armed groups. Andreopoulos’ essay is very interesting in a number of respects. First, he clearly and succinctly articulates the similarities and differences between International Human Rights Law and International Humanitarian Law. Although much has been written on whether the war on terrorism more appropriately fits under a “war” paradigm or “law enforcement” paradigm, Andreopoulos, once again, brings to the surface the significant tension between the two different frameworks and advocates better implementation of existing normative structures, rather than further codification. More specifically, he proposes a “soft law” document that incorporates already existing norms to be used as a frame of reference for engagement initiatives with armed groups. According to Andreopoulos, the soft law document would be premised on growing interdependence between International Human Rights law and International Humanitarian Law. Such creative thinking makes Andreopoulos’ essay a very interesting read.

The volume concludes with Richard Falk providing valuable insights on the application of the Law of Armed Conflict with the war of terrorism. Of note, Falk argues that “there are restraints embodied in the law of armed conflict that seem as important as ever to maintain and there is no excuse for discarding the whole of international humanitarian law because some parts may require and justify adjustment” (p.245).

In summary, this volume skillfully brings together a group of extraordinarily talented commentators to consider some of the normative and legal challenges associated with the law of armed conflict. The articles, taken together, will contribute substantially to readers’ understanding of this important set of issues.

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